Citation Nr: 0947535 Decision Date: 12/16/09 Archive Date: 12/31/09 DOCKET NO. 06-12 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from March 1960 to February 1964. He has indicated that he also was a member of the Army Reserve from 1980 to 1983; his Reserve service is not at issue in the present appeal. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a June 2009 Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript is associated with the claims folder. The Board notes that, during the hearing, the Veteran stated he currently has prostate cancer and a kidney growth which he believes are related to exposure to herbicides in service. The RO denied service connection for a right kidney cyst and prostatitis secondary to exposure to herbicides in the February 2005 rating decision that is the subject of this appeal. However, the Veteran did not file a timely Notice of Disagreement with regard to those issues. Thus, the issue of service connection for a kidney growth and prostate cancer is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus. 2. The Veteran did not have service in the Republic of Vietnam during the Vietnam era. 3. The competent and probative medical evidence of record preponderates against a finding that the Veteran's diabetes mellitus is related to his military service, including exposure to herbicide agents, and diabetes mellitus was not manifested within one year after his separation from active service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred in service, to include as a result of in-service exposure to Agent Orange or any other herbicide agent. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. In November 2004, VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed him that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. The Veteran was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board acknowledges that the content of the November 2004 letter did not fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), as later amended, regarding VA's duty to notify and assist. However, the Board finds that any error in notice is non-prejudicial. For example, the February 2005 rating decision, March 2006 SOC, and April 2009 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60- day periods to submit more evidence. In addition, the Veteran participated in a hearing before the undersigned in June 2009 and demonstrated through his testimony and submission of additional evidence that he was aware of the type of evidence required to substantiate his claim; he has, in fact, submitted many pertinent statements and documents addressing the issue before the Board. Moreover, in view of the decision herein, the Board will not reach any issue of disability rating or effective date as discussed by the Court in Dingess. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Moreover, he has demonstrated knowledge of, and has acted upon, the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). With regard to VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), his service personnel records, and his civilian treatment records from the Walla Walla and Yakima VA Medical Centers (VAMC). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2009; 38 C.F.R. § 3.303(a) (2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In certain cases, service connection can be presumed if a veteran was exposed to Agent Orange or other herbicide agent during active service. Presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of herbicide exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Under the applicable law discussed above, "service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The interpretation of the quoted language has been the subject of extensive litigation. Recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that in order for the presumption of service connection based upon herbicide exposure to apply, a Veteran must have set foot on the landmass of the country of Vietnam or served in the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The U.S. Supreme Court has denied further review of that decision, in Haas v. Peake, 129 S. Ct. 1002 (2009). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. In this case, the Veteran contends that his post-service diagnosis of diabetes mellitus, Type II, is related to herbicide exposure in service. As discussed below, because he claims no service in Vietnam, the question is whether exposure to Agent Orange or other herbicide agent at any other location is established by the evidence. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Facts and Analysis In this case, the Veteran contends his current diabetes mellitus was caused by exposure to herbicides during active service. He has stated on a number of occasions, including in a September 2008 letter that, during his active Navy service from 1960 to 1963, he was stationed in Bermuda, where he was charged with transporting empty barrels which had previously been filled with Agent Orange to a landfill at Kindley Air Force Base. There, he would dump the barrels into pits, burn them along with other waste, and ultimately dispose of the waste in the ocean by pushing it in with a bulldozer. In addition, in numerous communications, including a May 2009 letter, the Veteran said he was stationed in Puerto Rico beginning in the fall of 1963. He has stated that, both before and while he was there, Mt. El Yunque, which was within a few miles of the Naval Station Roosevelt Roads where he was stationed, and the perimeter fence of the base were sprayed with herbicides. He reiterated these assertions at his June 2009 hearing. Thus, although not a Vietnam veteran, he contends he was exposed to Agent Orange or other herbicide agents in service, which caused his post-service Type II diabetes. The Board has first considered whether a grant of presumptive service connection is warranted under 38 C.F.R. § 3.309(e), for herbicide exposure. This regulation enables a grant of presumptive service connection for the diseases listed at 38 C.F.R. § 3.309(e), above. Type II diabetes mellitus is one of the diseases specified in section 3.309(e), for diseases specific to herbicide-exposed veterans. Thus, the Board must determine whether the Veteran had service in Vietnam, or was otherwise exposed to herbicides in service. In this regard, the Board observes that the Veteran's DD Form 214 shows that he served in the Navy and did not receive any awards or decorations which would indicate service in Vietnam, nor does he contend that he was ever in that country. Thus, since the Veteran's service records fail to show service in Vietnam, the statutory presumption of in- service exposure to herbicide agents does not apply in this case. On the other hand, if exposure to Agent Orange or other herbicide agent(s) during active service at any location were to be established by the evidence, then the above presumptions as to service connection of the listed diseases could be invoked. See 38 C.F.R. § 3.307(a)(6)(ii). Therefore, although the service-in-Vietnam presumption is ruled out in this case, the Board will consider the Veteran's contentions regarding herbicide exposure in other locations, as well as the issue of direct service connection, including on a one-year presumptive basis for diabetes mellitus under 38 C.F.R. § 3.309(a). The Veteran's service treatment records (STRs) are negative for any manifestation of diabetes mellitus. The February 1960 enlistment examination and February 1964 separation examination reports do not contain any complaints, indications, or diagnosis of diabetes. Many years following separation from service, in June 2005, a blood test was done at the Yakima VAMC which indicated a new diagnosis of diabetes mellitus. In this regard, the Board notes that evidence of a prolonged period without medical complaint or treatment, and the amount of time which has elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A diabetic eye examination was recommended, and a glucometer was ordered. An October 2005 eye examination at the Yakima VAMC showed no apparent diabetic retinopathy. Additional records show the Veteran has treated his diabetes with diet modification and exercise. No competent opinion was rendered as to the cause of his diabetes. The Board finds that the weight of the competent evidence is against finding any direct connection between the Veteran's diabetes mellitus and active service, either on the basis of diabetes being manifested as a chronic disease during service, or on the basis of diabetes being manifested as less than chronic in service but continuing to be manifested to the present time. See 38 C.F.R. § 3.303(b). Moreover, there is a 40-year gap between separation from service and the onset of diabetes, and continuous manifestation of diabetes mellitus between his service separation and the diagnosis of the disability has not been established. His diabetes mellitus did not have its onset in service, and was not manifested within the first post-service year, thus ruling out the one-year-post-separation presumption. The Veteran's principal contention is that his diabetes, although first manifested many years after service, is related to exposure to Agent Orange while on active duty in the Navy, in Bermuda and/or Puerto Rico. However, exposure to herbicides in service has not been shown by the evidence of record. The Veteran's service personnel records do show that he was stationed in Bermuda from November 1960 to June 1963, and in Puerto Rico from October 1963 to February 1964. However, there is no indication in the records that he was assigned to work with toxic chemicals such as Agent Orange or other herbicides. The Veteran has submitted a number of documents in support of his contention that herbicides were used or tested both prior to and while he was stationed in Bermuda and Puerto Rico. A document entitled "Agent Orange Use Outside of Vietnam" includes a letter to Secretary Rumsfeld of the Department of Defense (DoD) from a Congressman Evans requesting an assessment of the use, testing, or storage of herbicides in several towns in Puerto Rico. A September 2003 response to that request from DoD includes an attachment which provides a summary of information obtained from a search of the records at the U.S. Armed Services Center for Unit Records Research (now known as the U. S. Army and Joint Services Records Research Center (JSRRC)) regarding use of herbicides in locations other than Vietnam. The attachment shows that testing of herbicides was conducted in several locations in Puerto Rico in 1956 and 1957. The base where the Veteran was stationed in Puerto Rico is not listed, and, as noted above, he was not in service during those years. A report which appears to be co-authored by employees of the Environmental Protection Agency (EPA) entitled "Documentation of Environmental Indicator Determination" describes migration of contaminated groundwater at the Naval Station Roosevelt Roads, in Puerto Rico. Soil testing in several areas of the base had revealed higher than acceptable levels of contaminants, including one site that was used for drum storage, while testing in other areas did not reveal any unacceptable risks to human health resulting from exposure to contaminants found. An internet article entitled "Freedom to Puerto Rican Parrots" describes the effect on parrots of testing of Agent Orange in 1962 and the next few years in areas of the El Yunque mountains in Puerto Rico. There is also an online article from The Royal Gazette which specifically mentions the Veteran and his work in Bermuda for the U.S. Air Force (when he was a civilian employee, although mischaracterized in the article as an "Air Force serviceman") from 1965 to 1967. In addition, the Veteran has submitted pictures of himself during service alongside a bulldozer and purportedly next to drums containing Agent Orange. A letter from an individual, J.A.K., who was then on active duty in the Air Force and based on Bermuda at Kindley Air Force Base, states that he (J.A.K.) had arrived on assignment there in May 1965, and that he knew the Veteran (who had been separated from the Navy in February 1964) when he "got a job at Kindley AFB, driving heavy equipment at the land fill garbage dump on Base." J.A.K. said he observed the Veteran in the performance of his employment. On one occasion, J.A.K. saw the Veteran driving a bulldozer over barrels that contained a liquid, which the Veteran said was Agent Orange, and the Veteran said he had also worked with Agent Orange when he was stationed in Puerto Rico. Based upon the Veteran's statements and testimony, it appears he was employed as a civilian worker at the Air Force base for about a year and a half from 1965 to 1967. The Board appreciates the amount of evidence gathered and submitted by the Veteran, but the above documentation does not establish that herbicide testing or storage occurred in Bermuda. Moreover, while the documentation implies that herbicide testing was conducted in Puerto Rico during the time the Veteran was stationed there (i.e., the internet article mentioning testing of Agent Orange in 1962 and the next few years in areas of the El Yunque mountains), it does not indicate such use or testing near the base where he was stationed. Thus, the documents submitted by the Veteran do not serve to show that he was exposed to herbicides during active service. The Veteran asserts, correctly, that in recent years the Department of Defense has acknowledged the use of Agent Orange and other herbicides in countries other than Vietnam. For example, see the VA Revised Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10(o), entitled "Exposure to Herbicides Along the DMZ in Korea," pertaining to herbicide use there between April 1968 and July 1969. In this regard, the claims file contains a series of e-mail messages exchanged between VA employees in July and August 2008. The e-mails indicate that the list of locations of herbicide use outside Vietnam provided by DoD does not show any testing, use, or storage of herbicides at the U.S. Naval Station in Bermuda. Further, there was no record kept of small-scale brush or weed clearing activity around bases, nor is there any way to determine what type of herbicide would have been used in such instances. With regard to herbicide use in Puerto Rico, the e-mails note that herbicide testing was performed in Puerto Rico in 1956 and 1957, mainly in the southwestern part of the island. From August to December 1967, tests were conducted at Rio Grande, also known as El Yunque. The Board notes that the mentioned 1967 testing occurred after the Veteran had separated from active service. Further, the e-mails noted that testing occurred between 1963 and 1967 at a number of small sites which were not near Roosevelt Roads. There was no documentation of storage of herbicides in Puerto Rico. Finally, a response from the U.S. Armed Services Center for Unit Records Research (CURR, now known as the JSRRC, as noted above) states that there was no documentation which verified that Agent Orange was stored or used at the Naval Station in Bermuda during the period of November 1960 to June 1963. The list of herbicide testing sites from the Department of Defense was also reviewed, showing that herbicides were not listed as being sprayed, stored, tested, or transported in Bermuda during the above period. Thus, the lack of documentation of exposure to herbicides, in addition to the large gap in time between separation from service and diagnosis of diabetes, weighs against a finding of any connection between the Veteran's active service and his diabetes. Moreover, the medical records in evidence, as well as several internet articles, show post-service exposure to various toxic substances as a civilian. The Board, as noted above, appreciates the Veteran's extensive efforts in his claim and appeal, and is sympathetic with his current health problems. However, without in any way doubting the sincerity of his beliefs and contentions, this is a case in which Government records are needed to establish the types of chemicals to which he was exposed in service, and the records obtained in this case militate against our finding that he was exposed to Agent Orange or other related substances while on active duty. Since the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus, the benefit-of-the-doubt doctrine is inapplicable in the final analysis, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, including as due to exposure to herbicide agents, is denied. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs